Tourism Law in Europe

omissions of an employee of a supplier of services, where they constitute improper performance of an obligation under the contract. Where the obligations arising from a package travel contract are performed by the employees of suppliers of services, the performance or failure to perform certain actions by those employees may constitute non-performance or improper performance of the obligations arising from the package travel contract. That non-performance or improper performance, although caused by acts of employees of a supplier of services, is such as to render the organiser liable, and the deliberate act of an employee of a supplier of services is not an ‘event’ which could not be ‘foreseen or forestalled’ within the meaning of the defence to the Regulation 15 liability. It held: “(…) The event which cannot be foreseen or forestalled referred to in the third indent of Article 5(2) of Directive 90/314 must be interpreted as referring to a fact or incident which does not fall within the sphere of control of the organiser or the supplier of services…the acts or omissions of an employee of a supplier of services, in the performance of obligations arising from a package travel contract, resulting in the non-performance or improper performance of the organiser’s obligations vis-à-vis the consumer fall within that sphere of control, those acts or omissions cannot be regarded as events which cannot be foreseen (…)”. This interpretation of the limits of the defence contained within Regulation 15 is, it is respectfully suggested, obviously correct; and the fact that the Supreme Court found it necessary to make a reference on the matter to the CJEU surprised many UK commentators. It is tentatively suggested that the fact that it did so may derive, at least in part, from the historical cultural unwillingness of the courts of the UK to impose non- fault-based liability on contracting parties. This unwillingness has been challenged in the context not only of the European legislative regime in relation to package travel, but, even more so, in the context of the international Conventions governing carriage by air and sea. 3. Carriage by Air: Montreal Convention The Convention has effect in English law by virtue of The Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002, and came into force in